More Non-Syria News: Japan Threatens to Take Korea to ICJ Over WWII Victim Compensation Cases

by Julian Ku

Although it is sometimes hard to remember, there are things going on in the world that are unrelated to the looming U.S.-Syria conflict. And although I have lots of thoughts on Syria, I wanted to point folks to some other news. Japan is threatening to take Korea to the ICJ as a result of a Korean court has upholding compensation to a Korean victim of WWII forced labor who sued Nippon Steel, a Japanese corporation that had used such labor in its support of the Japanese government during WWII.

Interestingly, Nippon Steel has recently announced it will agree to pay this judgment. Still, the government of Japan is not happy about this and other claims looming in Korean courts. It argues that all such claims were settled as part of the 1965 Agreement Between Japan and Korea Concerning the Settlement of Property and Japan is threatening to take Korea to the International Court of Justice over this Korean court judgment (and others). I have two quick legal observations.

1) Given the language in the Korea-Japan Agreement, I find the Korean court judgment surprising.

Similar cases in the U.S. were dismissed under the U.S.-Japan Peace Treaty, so it is surprising, but not unprecedented for the Korean courts to interpret a similar treaty provision differently. Still, the language of the treaty seems pretty broad, indeed much broader and more specific to include individual claims than the comparable US-Japan treaty language.

1 The High Contracting Parties confirm that the problems concerning property, rights, and interests of the two High Contracting Parties and their peoples (including juridical persons) and the claims between the High Contracting Parties and between their peoples, including those stipulated in Article IV(a) of the Peace Treaty with Japan signed at the city of San Francisco on September 8, 1951, have been settled completely and finally.

(Emphasis added). In 1965, Japan paid US$300 million (over 10 years) to the government of Korea as part of this agreement. In theory, that money was supposed to be paid out to individuals but apparently, it never was. I could have the language wrong, or perhaps I am missing something, but on its face, it looks like Japan indeed settled these claims. And recall that $300 million in 1965 is a serious chunk of change, equivalent I think to about $2.1 billion today.

2. The ICJ has no jurisdiction, or at least compulsory jurisdiction, over this dispute, but the Agreement does have a binding arbitration provision.

Korea has not accepted the compulsory jurisdiction of the ICJ, so Japan could not bring Korea to that court even if it wanted to. But Art. III of the Korea-Japan Agreement sends all disputes about the agreement to a three-person arbitral commission. Japan could take Korea to arbitration, which is binding (or at least as binding as any ICJ ruling). Permanent Court of Arbitration, anyone?

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